CREDIBILITY ISSUES OF LGBTI ASYLUM-SEEKERS IN THE
REFUGEE STATUS DETERMINATION
MARTA D’EPIFANIO
110605017
İSTANBUL BİLGİ ÜNİVERSİTESİ
SOSYAL BİLİMLER ENSTİTÜSÜ
ULUSLARARASI ILIŞKILER YÜKSEK LİSANS PROGRAMI
TEZ DANIŞMANI: Yrd Doç. Dr. Pınar Uyan Semerci
ISTANBUL HAZIRAN 2011
Credibility issues of LGBTI asylum-seekers in the refugee status
determination
Marta D’Epifanio
110605017
Asst. Prof. Dr. Pınar Uyan Semerci :
Asst. Prof. Dr. Mehmet Ali Tuğtan:
Prof. Dr. Harry-Zachary G. Tzimitras:
Tezin Onaylandığı Tarih
: ...
Toplam Sayfa Sayısı:
Anahtar Kelimeler (Türkçe)
Anahtar Kelimeler (İngilizce)
1)
Sığınmacı
1) Asylum-Seeker
2) Multeci
2) Refugee
3) Cinsel Egilim
3) Sexual orientation
4) Toplumsal Cinsel Kimligi
4) Gender Identity
Özet
Homofobi, eşcinsel aktivitelerin suçlandırılması, ve LGBTI bireyleri hedef alan şiddet dünyada bir çok LGBTI bireyi memleketlerinden daha güvenli yerlere göç etmeye zorluyor. İltica seçeneği LGBTI bireylere zaman içinde tanındı. Son yirmi yılda, 1951 Anlaşması'nda cinsel yönelim ve toplumsal cinsel kimliğin belirli bir sosyal gruba aidiyet temelinde bir iltica talebi seçeneği olduğu konusunda canlı bir uluslararası tartışma yaşandı . Cinsel yönelim ve toplumsal cinsel kimliğin iddialarının kabülü konusundaki ilk engeller cinsel yönelimin "istemli" yönüyle bağlantılı olarak, sonrasında gizlenme ihtimali ve sonrasında da LGBTI ilticacıların uğradığı zulmun tanımı konusunda oldu. Çalışmamız bu tartışmaları sunduktan sonra RSD procedüründeki güvenilirlik değerlendirmesi konusuna odaklanıyor. Araştırmada gerçekleştirdiğim çeşitli mulakatlar ve kişisel katılım sonucu, uluslararası mülteci rejiminin RSD prosedürüne olan etkisinin bir analizini sağladım. Daha belirgin olarak, çalışmamda karar vericiler ve hukuki danışmanların kimlik icra süreci ile nasıl yüzleştiklerine odaklanarak, çeşitli göstergeler ışığında ve LGBTI ilticacilarla ilgili belirli konularda Türkiye'deki duruma daha yakından bakmayı amaçladım.
Abstract
Homophobia, criminalization of same-sex activity, and targeted violence forces LGBTI individuals worldwide to flee their homelands for safer havens. The option of seeking asylum has been opened to LGBTI individuals over time. In the last two decades a vivid international debate brought in the 1951 Convention sexual orientation and gender identity as an option to claim asylum on the ground of membership to a particular social group. First hindrances for the acceptance of SOGI claims have been in connection to the ‘voluntarity’ of the aspect of sexual orientation and possibility of discretion and then on the definition of persecution with regards to LGBTI asylum-seekers. The research then focuses on the emerging issue of credibility assessment in RSD procedure. Through research, interviews and personal involvement, I provided to analyse how international refugee law regime impacted on the RSD procedure. More specifically I aimed my research at how decision-makers and legal advisors face the process of identity performance trying to focus on indicators and specific issues regarding LGBTI asylum seekers with a closer look at the situation in Turkey.
“The principle of universality admits no exception. Human rights
truly are the birthright of all human beings.” (UN High
Commissioner for Human Rights)
Acknowledgments
Firstly I would like to thank my supervisor assistant professor Pinar Uyan Semerci for the patience in the process of structuring the thesis and for contribution and advice especially in moments of confusion which I was never short of.
A special thank goes to all the friends that endured my stress during the whole procedure of the thesis. First to Daniela Campo, who practically kept me sane and active ; to Natalie Richman whose enthusiastic loving support has never stopped; to Ariel Travis for the long and interesting conversations about LGBTI refugees; to Kay for her ability to delegate; to Sara Miller and Maggie, Ryan for accurate and efficient collaboration; to Mathilde Blezat and Agnese Caputo for more talks and information; to Rachel Alcorn, Nil Delahaye, Cetin Gurer, Onur Bakir, Queenia Pereira De Oliveira, Alessandra Cardone, Emiliano Bugatti, Simone Gobber, Eren Korkmaz, Gabrielle LeRoux, Natali Arslan, Francesca Feleppa, Tania Trionfi, Pinar Buyuk, Begum Basdas for the patience.
A special thank to Bulent Peker for his interest, kindness and will to collaborate.
1. Introduction ... 3
1.1. Details of the Turkish case... 16
1.2. Terminology ... 20
2. International human rights framework and sexual minorities rights ... 24
2.1. International Legal Framework... 24
2.2. The Yogyakarta principles. ... 26
2.3. Transnational gay identity?... 30
2.4. Queer Migration ... 36
3. LGBTI asylum seekers: a new concern for international protection 39 3.1 A nexus for international refugee law and human rights law ... 39
3.2 The status of refugee ... 41
3.3 LGBTI-specific asylum procedure issues... 47
4. Sexual orientation and Gender Identity as a Ground ... 53
4.1 A particular social group. ... 53
4.2 Well-founded fear of persecution... 57
4.3 Discretion... 59
5. Proving the membership: credibility ... 65
5.1. Disputable attempts of scientific judgment... 65
5.1 Providing proof... 68
5.2 Impediments to credibility assessment ... 70
5.2.1 Alleged causes for reluctance in the exposure. ... 70
5.2.2. Prejudices and expectations of adjudicators. ... 73
5.2.3 Linear development of sexual identity... 75
6. A case study: LGBTI refugees and asylum seekers in Turkey... 79
6.1 General framework for refugees and asylum-seekers ... 79
6.2 Practical impediments in Turkey... 87
7.1 Identity assessment... 93
7.2. Bogus Claims... 102
8. Conclusions... 106
8.1 Queering the procedure ... 110
9. Bibliography... 115
Abbreviation
LGBTI – Lesbian Gay Bisexual Transsexual Intersex SOGI – Sexual Orientation and Gender Identity RSD – Refugee Status Determination
UNHCR – United Nations High Commissioner for Refugees ORAM – Organization for Refuge, Asylum and Migration HCA – Helsinki Citizen’s assembly
1. Introduction
The thesis aims to explore how advancements in Lesbian, Gay, Bisexual, Trasgender and Intersex (LGBTI) discourse and rights have an effect on sexual orientation and gender identity (SOGI) asylum claims with regards to credibility issues in the refugee status determination procedure with a closer look at the Turkish situation.
The question lies at the intersection of several fields such as international human rights and refugee law, identity politics and sexual minority rights and it is significant for integration and mutual cooperation among those. LGBTI rights are applied in varying degrees across the world. No country though, can claim a full-fledged LGBTI rights system, as in granting them the same rights of heterosexuals. LGBTI individuals are perceived as different, and while within a legal framework they need to be identified and categorized, within society they need to be taken out of these very categories to actually blend in. Particularly, LGBTI asylum-seekers are both at the margins of society as LGBTI and of local LGBTI communities as migrants. They challenge both the already flimsy legal and social achievements granted to LGBTI individuals in the international field and in a handful of countries, and the western conventional definition of LGBTI identity. Additionally, LGBTI asylum-seekers highlight shortcomings in both international human rights and international refugee law; sexual orientation and gender identity as fluid elements clash with the need of
universalizing human rights to make of those an actual tool of international protection. It is a challenge especially with regards to refugee laws which tend to apply jurisprudential categories and standardized mechanisms of identification to assess claims beyond doubt to a group which is eluding common framing1.
Around December 2010, the news that the Czech Republic was using phallometry2 to test and verify the sexual orientation of LGBTI asylum-seekers came to the attention of the media. Articles3 (BBC, Hurriyet) reported that only 10 people have been subjected to the test according to a statement of the Ministry of the Interiors. In the immediate aftermath of the diffusion of such news, the Organization for Refugee, Asylum and Migration (ORAM) describes at length the original uses of this test and how it had already been tagged and dismissed as non scientific by the
1 For further debate about international gay identity and western and non-western
countries Dennis ALTMAN “Rupture or Continuity? The Internationalization of Gay Identities” Social Text, No. 48/1996 pp. 77-94; Katherine FRANKE “Sexual Tensions of Post-Empire” Public Law & Legal Theory Working Paper Group Number 04-62/2004,
Columbia Law School; Sonya KATYAL “Exporting Identity” The Yale Journal of Law and Feminism, Vol. 14 Number 1/2002, pp.98-176; Joseph Antoni MASSAD “Re-Orienting
Desire: The Gay International and the Arab World” Public Culture, Vol 14, Number 2/2002, pp. 361-385.
2 “Penile phallometry, also called ‘penile plethysmography’ is a method to allegedly
scientifically quantify male sexual arousal by measuring physiological responses to visual stimuli through attachment of electrodes to the penis”. There is also the equivalent treatment for women, vaginal photoplethysmography” (ORAM, 2011a, p.5). For a more accurate description of penile and vaginal photoplethysmography look at ORAM 2011 ‘Testing sexual orientation: A scientific and legal analysis of plethysmography in asylum and refugee status proceedings” available at:
http://www.oraminternational.org/Publications/index.html
3 “AB'yi ayağa kaldıran ereksiyon testi” in Milliyet 9-12-2010,
[online] http://www.milliyet.com.tr/ab-yi-ayaga-kaldiran-ereksiyon-testi-/dunya/sondakika/09.12.2010/1324179/default.htm
“Czech gay asylum 'phallometric test' criticised by EU” in BBC News, 8-12-2010, [online] http://www.bbc.co.uk/news/world-europe-11954499
international scientific community. Supposedly, the aim of this test is to prove that if gay claimants get an erection in response to visual stimuli then they are genuinely gay. This is not only a transgression of basic human rights of asylum-seekers including “the right to privacy; and the right to be protected from medical abuses” (ORAM, 2011a, p.3) but it also violates the prohibition of cruel, inhumane and degrading treatment as stated in Article 6 of the UN Convention Against Torture and Article 3 of the European Convention on Human Rights.
Additionally, when considering the extent and the significance of the latest studies about sexuality and gender identity, especially queer theory4, acquired in many fields, the idea of proving someone to be genuinely gay is by itself controversial and unrealistic.
Studies supporting how sexual orientation does not consist exclusively of sexual intercourse, and how sexual identity is not a fixed category but is socially constructed, are questioning the common assumptions with regards to sexual and gender norms.
Those who transgress gender norms are particularly likely to be targeted for violence. In countries where same-sex activity is criminalized those “laws against ‘public scandals’, ‘immorality’ or ‘indecent behaviour’ are used to penalize people for looking, dressing or behaving differently from enforced social norms” (O’Flaherty&Fischer, 2009, p.4). As O’Flaherty and Fischer
4 The main figure for queer theory is considered to be Judith BUTLER’s Gender
(2009) concisely remind, the simple presence of these law against ‘immorality’, regardless of whether they are enforced or not, threatens the lives of non-conformants to gender norms. These laws can be arbitrarily applied to harass or blackmail persons of diverse sexual orientations and gender identities, to restrain their daily lives, as a basis for discrimination in employment and accommodation or to impede activities of LGBTI activists, counselors and safer sex advocates. The state carries out a process of repression by silencing non-conformants to gender norms and confining sexuality indoors. On one hand, sexuality is confined to the private sphere, allowing the virtual space to do what they want as long as it is kept invisible so the state does not have to interfere; on the other hand, to be able to publicly enjoy their rights, LGBTI individuals must go out in the streets and be visible to assert their existence within society and claim rights which are due to them, as humans. (Hubbard, 2001 ; O’Flaherty & Fischer, 2009).
Yet those same rights are not applied in a consistent way across the world, and they do not necessarily have the same significance in non-western countries. As Katyal (2002) remarks, “to commit a homosexual act is one thing, to be a homosexual is an entirely different phenomenon. The difference between identity and conduct raises the difficult question whether sexual orientation is itself a culturally specific concept.” (Katyal, 2002, p.103). There are different conceptualizations of sexual identity; in India, as Yoshino reports, it is not necessary for men having sex with men to self-identify as gay. That is to say, their sexual activity does not have a fixed
recognizable expression. Alternately, in western countries same-sex activity is embedded in gay identity: the outward expression of one’s own identity matches its private existence. The identification of sexual acts with sexual identity is then a typically western concept and it is based on some kind of gay essentialism where homosexuality has fixed and clear meanings. Jordan (2009) expresses this pattern by highlighting the role of western psychology in creating “a view of sexual and gender identity as an intrinsic, essential trait, discovered, expressed, and, once realized, stable. The popularized coming out narrative reinforces this view, and provides an implicit template for identity formation from non-awareness through self-acceptance” (Jordan, 2009, p.175). Against all social demands of invisibility, outward performance of sexual identity becomes a political act which calls for rights to be granted upon this very identity.
Katyal (2002) labels the application of rights on the basis of this model as ‘substitutive’ approach and argues the universality of such an approach. Conversely, the importance of well-defined and clear-cut gender roles appears to be cross cultural, and non-compliance provokes marginalization and repression across the world. (Wintemute, 2001; Katyal, 2002)
Yoshino indicates how assimilation is used as a legitimization of this invisibility. To analyse how the perpetuation of this invisibility is enforced, Yoshino provides a paradigm. He postulates that in order to be assimilated and to avoid discrimination, LGBTI individuals or in general “disfavored groups are forced to cover aspects of their identity in order to reap the
social, political, economic and legal benefits of mainstream society. Covering does not mean changing one’s identity (converting) or denying one’s identity (passing), but rather to selectively minimize traits that visibly mark one as having a disfavored or disadvantaged identity.” (Yoshino cit. in Heller, 2009, p.296) These three strategies-either adopted because of no other option or forced upon-are reportedly a form of discrimination of LGBTI individuals whose rights are being sacrificed to a sexually homogeneous society. All LGBTI individuals live within this paradigm and perform the strategies at different degrees. According to Heller (2009) the only moment in which LGBTI individuals are allowed and forced to un-cover is when they are undergoing RSD procedure; they are required to act out their full-fledged identity against all internal blocks, impedements, internalized homophobia or self-hatred they carry because this performance will have an effect on their future.
To summarize, repression is defended and legitimized in the name of morals, manners, cultural and religious issues. For that reason forcing the application of human rights can be perceived as going against the sovereignty of the state and interfering with its culture, customary law, and penal code. Within the last decade, this forced invisibility, or call for discretion, has been acknowledged as a form of discrimination in the human rights regime regardless of the preferences of the country. (Millibank, 2004)
Sexual minorities’ rights thus rest between domestic criminal laws and international human rights law, which are not always in harmonious
coexistence. There is an increasing jurisprudence showing a wider and consistent application of human rights with regards to individuals of different sexual orientation and gender identity. The issue of sexual minority rights has also been included in the United Nations agenda and its body of human rights treaties in an attempt to update the latter to ensure a wider distribution of sexual minorities rights. (Saiz , 2004) The increased visibility in the international scene and the advancements accomplished in matter of sexual minorities in human rights legislation culminated in the drafting of the Yogyakarta Principles in 2007. Those principles aim to officially and evenly integrate the rights of sexual minorities into the already existing body of human rights treaties.
‘Queer migration’ emerges as a new body of scholarship within this international context. Research on queer migration aims at pointing out discriminatory attitudes in immigration policies and came to analyse the figure of the queer migrant; a queer migrant is someone leaving one’s own homeland towards countries with better conditions for LGBTI individuals where, in any case, they have to face difficult situations. Queer migrants are recognized as a nexus for conflicts of nationality, race and class, and prisoners of a culturally specific binary vision of sexuality. All those differences ensue in a multilayered marginalization as an answer to this identity whose limits are blurred5. Analysis on policies for queer migrants
5 For further debate about queer migration Anne-Marie FORTIER, “Queer
show that in the last two decades the situation has been tentatively changing. The removal of the ban of LGBTI individuals to enter United States territory in 1990, the first voices about same-sex unions in some states, and the increase in the number of countries to grant asylum to LGBTI applicants up to twenty.6 (Budd, 2008 ; Luibhéid&Cantù, 2005)
On this trend, Landau (2005) defines the growth in LGBTI claims as ‘staggering’ and expects even further increases in the near future. The focus on LGBTI asylum-seekers in the international agenda is linked to this growing awareness of the recent phenomenon of queer migration, and to advancements in the international human rights regime towards sexual minorities. The concern of international organizations has been made official by means of the UNHCR Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity issued in 2008 to direct, support and suggest legal standards and appropriate behaviours towards SOGI asylum-seekers.
The basis of the Guidance Note lays within the ongoing and livelier debate
No 4/2001, pp. 405-424 ; Eithne LUIBHEID, Entry Denied: Controlling Sexuality at the Border Minneapolis: University of Minnesota 2002 ; Eithne LUIBHEID, and Lionel CANTU’ Queer Migrations: Sexuality, U.S, Citizenship, and Border Crossing Minneapolis, University of Minnesota Press, 2005; Eithne LUIBHEID “Queer Migration: an unruly body of scholarship” GLQ A journal of lesbian and gay studies 14 No 2-3/2008 pp. 170-190; Martin F. MANALANSAN IV Queer Intersections: Sexuality and Gender in
Migration Studies University of Illinois, Urbana-Champaign; Derek MCGHEE “Queer Strangers: Lesbian and Gay Refugees” Feminist Review, No. 73/2003, pp. 145-147; Cindy PATTON, and Benigno SANCHEZ-EPPLER Queer Diasporas London, Duke University Press, 2005.
6 These countries are Australia, Austria, Belgium, Canada, Denmark, Finland,
France, Germany, Greece, Ireland, Italy, Latvia, the Netherlands, New Zealand, Norway, South Africa, Spain, Thailand, the United Kingdom, and the United States.
in common law jurisdictions. Millibank and LaViolette, the current main researchers on the issue, are working on the analysis of cases from Australia, Canada, New Zealand, U.K and U.S whose results hint that one of the emerging problems for LGBTI asylum-seekers in the refugee determination process is the framing of non-western sexualities within a western concept. The latest achievements in the sexual minority rights field are still being debated and experimented within those countries, then gradually transferred to the international refugee law regime and made official with the Guidance Note. The vivacity of the debate is also due to the high amount of claims those countries receive both for resettlement7 and asylum, and the complex structure of the adjudication system. In the case of the U.S for example, the refugee ceiling set by the Obama Administration for 2010 was 80.0008 making of the U.S the largest recipient of first asylum applications and resettlement among western countries. According to UNHCR data, even though most of the asylum-seekers are received in the least developed countries, there is not as much literature or debate about SOGI claims in those countries. (Budd, 2008; Millibank, 2004; UNHCR, 2009)
According to the 1951 United Nations Convention and the 1967 Protocol
7 Only a small number of states takes part in UNHCR resettlement programs. The
United States are the world's top resettlement country, while Australia, Canada and the Nordic countries also provide a sizeable number of places annually. In recent years there has been an increase in the number of countries involved in resettlement in Europe and Latin America.
8 Migration Policy Institute, Erin Patrick “The US Refugee Resettlement Program”
Migration information, available at:
Relating to the Status of Refugees, a refugee is a person who “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.” In order to be under the protection that the term ‘refugee’ entails, all the criteria of inclusion have to be met.
The process to consider LGBTI as candidates for international protection, dates back to the late 80s and grows in importance and visibility through decades. Throughout the course of the thesis I will examine the different levels of debate that brought SOGI claims to be included in the 1951 Convention, and the impediments that LGBTI asylum-seekers meet when accessing international protection.
LGBTI asylum-seekers are permanently given the inclusion in the particular social group (PSG) as a ground through the intense legal debate about the topic, and especially as an effect of two non-LGBTI related cases made as precedents (in the U.S in the 1985 matter of Acosta and in 1993, Canada vs Ward). Those two cases set down the standards for consistently defining the PSG within the 1951 Convention terms. Homosexuals were then officially recognized in this appellation in 1994 when the 1989 Matter of Toboso Alfonso in the U.S was made a precedent.
The long road to acceptance has to battle assumptions of the non-necessity or voluntary nature of sexual orientation and gender identity. As a matter of fact, in early cases in the 90s, the applicant would be sent back home and asked to live discreetly, thus transferring to the individual the responsibility of his own protection by means of self-restraint and covering. It is not necessary to live out one’s sex life in an openly blatant way; heterosexuals do not do so. As Millibank (2009) pointed out, while no one is required to hide his/her9 own political convictions or religious belief regardless of the risk they might have to face, to go against gender roles as conceived and performed by society is not allowed. In other words, sexual orientation and gender identity do not have a statutory status under the Convention grounds, and LGBTI individuals do not have the right to express their identity but should live in discretion. In other words, they must stay invisible to survive. (Millibank, 2009; Walker, 2000). In the last decade this assumption has been upheld as discriminatory towards LGBTI individuals, asylum-seekers and refugees. James Hathaway (1991) develops a link between discretion and persecution including sexual orientation in the core entitlements granted by international human rights. The nexus lies in the fact that refugee law “protects those whose fundamental human rights are seriously abused or at risk of serious abuse.” (Millibank, 2004, p.199) Being asked ‘to keep a low profile’ is a violation of human rights which has been recognized and
9 Language itself gives an idea of the limited perspective on gender and it does not
allow the use of a single adjective; I will use the masculine form because of the predominant group in the claimants.
widely accepted in asylum procedures. LGBTI individuals have the right to not hide their own sexual identity regardless of the laws of the country they are living in. The nexus invisibility-repression amounting to persecution is satisfied, so the next step is to prove that persecution happens on account of the membership to that particular social group.
The hurdle in SOGI claims thus switches to the procedure of proving the genuinity of LGBTI identity. Whether an applicant is actually homosexual or not and how to assess the truth of it has to be tested; it is a matter of credibility. LGBTI claims are deemed to be the hardest to assess because of the lack of evidence and the sensitivity and relativity of the issue. “The process of preparing for the hearing and the hearing itself places claimants in a web of relationships in which they must be recognized as LGBTQ and as refugee.” (Jordan, 2009, p.174) Within this multilayered discourse, decision-makers are thus attempting to pinpoint the common traits of LGBTI applicants coping with the effect of the subjectivity of both the narration and the resulting judgment. These claims are a stage for the performance and interaction of the claimant and the decision maker and their way of constructing identity. The aforementioned case in the Czech Republic is one example of how decision-makers try to set a standard by using the authority of science to confirm LGBTI identity.
To sum up, LGBTI individuals living under oppressive regimes have gained the right to seek international protection. However, to avail themselves of this right they have to prove the authenticity of their sexual orientation.
Turkey is situated at the crossroad of Africa and Asia (home to many refugees-producing countries such as Afghanistan, Iran, Iraq, Sudan, Somalia) and borders the European Union. The increasing pressure of migration flows combines with the political situation to make Turkey a significant case for research. The percentage of migrants passing through Turkey on their way to Europe or seeking asylum has increased in the last decades; according to the International Organization for Migration (IOM) “Migration in Turkey: A Country Profile 2008”, in 2007 there were 1,328,405 migrants. With regards to the asylum procedure, Turkey is also only a country of transit for non-European asylum-seekers10 whose fate is necessarily resettlement in a third country or deportation. To date, the key actor in the asylum procedure for non-Europeans has been the UNHCR. According to ORAM, Turkey has the highest known rate of LGBTI refugees passing through because it shares the border, or is in close proximity to, several countries that have oppressive regimes when it comes to the treatment of LGBTI people, especially Iran which not only is one of the countries whose legislation enforces death penalty, it is also the country that western LGBTI and human rights activists groups are targeting as the greatest violator of fundamental rights of sexual minorities (ILGA, 2010; ORAM 2011). Since the UNHCR does not breakdown the claims by ground and it does not publish cases because of confidentiality reasons, the amount
10 Turkey, as mentioned earlier, is a ratifier of the 1951 Convention and ratified the
1967 Protocol, lifting the temporal limitation of the Refugee Convention; however, Turkey chose to maintain the geographical limitation created by the Refugee Convention despite many requests by international community.
of information available is very limited. A report published by ORAM with regards to LGBTI asylum-seekers and refugees has brought the issue to the attention of the international community.
The following second and third chapters will go through the world conditions of LGBTI individuals and their statuses as migrants, thus introducing asylum-seekers as a part of the so-called queer migration. The fourth chapter will focus on LGBTI claims and how those have been included into international refugee law. At first the process of inclusion of SOGI claims in the 1951 Convention and touchstone legal cases that furthered the issue is retraced, then, mostly referring to common law jurisdictions, information is divided into two sections with regards to hindrances for LGBTI asylum-seekers in general. The first is about practical hardships specific to the group, namely issues that concretely prevent LGBTI asylum-seekers to avail themselves of international protection. The second section deals with impediments encountered at the interview and in the credibility assessment. Once the general situation and its theoretical and juridical framework have been explored, the last two chapters will take a closer look at Turkey as a case study framing it into the international LGBTI asylum-seekers and refugee debate.
1.1. Details of the Turkish case
This research is yet at an exploratory stage due to the fact that the issue is recent and there are has been no previous research done about the process of
credibility assessment in Turkey. The aim is to create a better understanding of the UNHCR interviewing procedure in Turkey, to produce an analysis of the current discourse in the interview process, and to obtain a general picture of the situation of LGBTI asylum-seekers and refugees.
The concept of identity is difficult to grasp and categorize beyond doubt. A commonly accepted idea in recent social studies is of it being a performance and interchange between two or more actors. However within jurisprudence a non-fixed concept is not easy to handle. The discourse about LGBTI identity of asylum-seekers rests in between the need for fluidity due to the damage that categorization can provoke, and the need for rigidity so it can be included in legal categories. Because most of this mediation happens at the level of the decision-makers, this paper focuses on their model of interpretation of LGBTI identity rather than on accounts of asylum-seekers.
To frame the Turkish situation with regards to LGBTI asylum-seekers and refugees within an international discourse, to trace a first draft of the situation in Turkey, to outline how they are assessed how the process of identity building is performed in the RSD, interviews were conducted with UNHCR officers and NGO’s advocates for refugees. The aim is to draft a pattern of common indicators in the interviews and how those are transformed in a defined identity.
To gather information about such an elusive and difficult topic, qualitative research is the best method. First of all, due to the stigma attached to
LGBTI persons in general, and especially in conservative societies, it is better to elicit answers in an open way in order to avoid forced attempts of political correctness as well as to be able to observe the choice of language, issues or facts. Additionally in-depth interviews make it possible to have a deeper insight considering that sexuality is an extremely subjective, intimate and private topic and research is not only based on direct information.
To gather data I conducted 12 in-depth interviews on the site including legal advisors, legal officers, and people that work with refugees in the legal field. In order to outline some common indicators I asked them what do they expect a LGBTI applicant to be and what they would look at to validate this identity. I interviewed UNHCR officers in the Van Field Office and the Headquarters in Ankara. The background idea was to obtain a varied group of people rather than only the ones dealing with SOGI claims; however, the number of people willing to talk was very limited; most of them refused simply by saying that they did not know enough about the issue and referred me to someone else. I assume that, instead of trying to focus on a single issue, it would have been more productive in terms of response to ask more general questions and try to elicit answers within a wider context. Nevertheless, the number of people in the field is so limited that it would be hard to keep the ‘real’ aim of the research hidden, and with regards to LGBTI asylum-seekers there are even fewer experts. The process was complex because the topic and stories/cases are bound by confidentiality. This is a strong limitation in social sciences because it makes exchange in
research less effective and detailed.
I accomplished a seven-month internship with Helsinki Citizens Assembly, where I experienced an insight from the field, I got in touch with asylum-seekers and observed the asylum procedure. At the same time, I got acquainted with the specific topic while collaborating with ORAM’s legal advisor, exchanging ideas, thoughts and experiences. On one hand I had the opportunity to witness real situations and generate my own personal experience as a participant observer, on the other hand I am bounded by confidentiality myself.
Helsinki Citizens’Assembly is a not-for-profit Istanbul-based organization and is one of the biggest dealing with asylum-seekers in Turkey. The HCA Refugee Advocacy and Support Program started in 2006; it originally provided support for all asylum-seekers and refugees, but now only provides legal advice in the case of rejection by UNHCR to organize the appeal; HCA dealt with SOGI claims until 2008, when they set up a partnership with ORAM. Currently, HCA takes care only of LGBTI clients who explicitly declare that they do not want to be represented by ORAM. For this reason I selected the legal advisors who worked there before the partnership with ORAM.
ORAM is the leading non-governmental organization on issues concerning LGBTI asylum-seekers and refugees in Turkey. Its headquarters are in San Francisco, but there is a legal advisor in the Helsinki Citizens Assembly’s
office in Istanbul. It conducts international and domestic advocacy, research, education, and legal representation on behalf of refugees fleeing sexual and gender-based violence.
1.2. Terminology
The “LGBTI” acronym stands for different sexual orientations and gender identities. To avoid any misunderstanding about the meaning of sexual orientation and gender identity I refer to the definitions drafted and adopted in the Yogyakarta Principles whereby:
“Sexual orientation is understood to refer to each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender.” (The Yogyakarta Principles, 2007, p. 6)
And:
“Gender identity is understood to refer to each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms.” (The Yogyakarta Principles, 2007, p. 6)
For purposes of this research by means of the other categories:
‘Lesbian’ refers to a woman who is sexually or emotionally attracted to other women;
‘Bisexual’ refers to a person of either gender who is sexually or emotionally attracted to both men and women;
‘Intersex’ refers to a person whose sexual anatomy is not considered standard for a male or a female;
‘Transgender’ refers to a person born of one gender who does not fully identify with that gender or identifies primarily as a member of the other gender.There are two specific groups:
‘Male-to-female’ (MTF) refers to someone born male who primarily identifies as a woman;
And:
‘Female-to-male’ (FTM) refers to someone born female who primarily identifies as a man.
According to the UNHCR LGBTI discussion paper 2010, many people consider an intersex condition to be a medical disorder treatable with surgery and counseling. For others, being intersex is a matter of gender identity. It is important to underline how the issue of intersex is new to international human rights and advocacy groups. Whether intersex individuals should be grouped together with LGBT individuals it is being debated. It is important to remember that although lesbian, gay, bisexual, transgender and intersex rights are put together in the acronym, they entail substantial differences and consequently different needs. Gay man are the main category taken into account in LGBTI asylum-seekers and refugee
literature and field work because of the high visibility of their claims; transgenders and lesbians appear in a smaller percentage, thus the abbreviation LGBTI can be often intended to mean only gays but conventionally, and often erroneously, it encompasses all categories.
For the purpose of this thesis I will use the acronym LGBTI when referring to civil and human rights and to the group of claimants. Sometimes the term ‘sexual minorities rights’ is also used.
Conventionally, the terms ‘sexual orientation’ and ‘gender identity’ (SOGI) are used to refer to the ground of the claim. There is an important clarification to make here, which often creates problems in the claims: one’s own sexual identity does not necessarily include a given sexual orientation. A common mistake is to equate sexual orientation and gender identity, but they are not necessarily interdependent. Sexual orientation and sexual identity are fluid concepts, varying between individuals and throughout a given person’s life.
Additionally, regardless of the recent body of academic literature about queer migration, I choose to leave out the word ‘queer’ when specifically referring to SOGI claimants because this word entails a whole range of non-conformative sexualities and often expresses a political stance. To the purposes of my research this political meaning is not significant since I focus on the narrower acceptation of sexual orientation; the word will be
used when cited in the original source or when referring more widely to all non-conformative sexualities.
Moreover I will also use the terms ‘asylum-seekers’ and ‘refugees’ in their legal and technical meaning.
‘Asylum seeker’ refers to a person who has requested the protection of UNHCR and the Government of Turkey pursuant to the 1951 Geneva Convention and the domestic laws implementing it, and whose application is still pending a final decision.
‘Refugee’ refers to a person who has been formally recognized as such and is entitled to protection by the UNHCR, the Government of Turkey, or both.
All refugees were previously ‘asylum seekers’ whose request for protection has been approved. However, the applications of many ‘asylum seekers’ are ultimately denied, foreclosing their entitlement to ‘refugee protection.’ (The Yogykarta Principles, 2007 ; Yoshino, 2002, ORAM, 2011b).
2. International human rights framework and sexual
minorities’ rights
2.1. International Legal Framework
The predicament of LGBTI individuals across the world is well known. In every countries people are subjected to varying degrees of human rights violations because of their actual or perceived sexual orientation and/or gender identity. Serious bodily harm, acts of discrimination, and laws disfavoring LGBTI individuals are instated around the world. It is only the extent of the violations that varies according to the specific situation of the country. The inclusion of sexual minorities’ rights in the international agenda is a recent accomplishment, but so far in its widest and more comprehensive implementation, it involves only a handful of countries11. (ILGA, 2011)
The groundbreaking interpretation of the UN Human Rights Committee (HRC) of the ruling of the Australian State in 1994 in the case of Toonen vs Australia12 as a breach of article 17 and 26 of the ICCPR was recognized as a landmark for the introduction of sexual orientation as a ground for
11 See Amnesty International, Crimes of Hate, Conspiracy of Silence. Torture and
Ill-Treatment Based on Sexual Identity, August 2001; Daniel OTTSON, State-Sponsored Homophobia: A World Survey of Laws Prohibiting Same Sex Activity between Consenting Adults Stockholm: International Lesbian and Gay Association, 2009, 4–8, available at
http://www.ilga.org/news_results.asp?/. See also International Commission of Jurists, Sexual Orientation and Gender Identity in Human Rights Law. References to Jurisprudence and Doctrine of the United Nations Human Rights System, November 2007.
12 Toonen vs Australia available at:
discrimination, and as deserving equality and protection before the law. Article 17 establishes the right to privacy and freedom from arbitrary or unlawful interference from the authorities. Article 26 states that the rights in the ICCPR have to be applied “without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status13”. The HRC states that “other status” can be interpreted as sexual orientation, thus making it grounds for non-discrimination. In the ruling, the HRC underlines how just the existence of those laws disregarding their enforcement had an effect on the applicant’s life and affected public opinion. In the last twenty years the addition of General Comments to UN-charter based human rights treaties bodies14, along with the Toonen ruling, have established that discrimination on the basis of sexual orientation and gender identity is to be internationally rejected. (Saiz, 2004 ; O’Flaherty&Fischer, 2009)
Currently, according to the 2011 ILGA report on state-sponsored homophobia, seventy-six countries criminalize same-sex sexual acts or gender “deviant” behavior. Among these, five maintain the death penalty for male homosexual acts, and four for sexual acts between women. In several
13 ICCPR available at http://www2.ohchr.org/english/law/ccpr.htm
Art. 17. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. Art. 26. Everyone has the right to the protection of the law against such interference or attacks.
14 Human Rights Committee (HRC), Committee on Economic Social and Civil
Rights (CESCR) , Committee on the Elimination of Discrimination Againts Women (CEDAW) , Comittee on the Elimination of Racial Discrimination (CERD), International Covenant on Civil and Political Rights (ICCPR,) , Committee Against Torture (CAT), Convention on the Rights of the Child (CRC).
countries, restrictions on association, assembly, and speech have been imposed to LGBTI individuals, and discrimination in employment, education, housing and access to services has been acknowledged across the world. Nonetheless, according to the same report, several positive steps have been registered, including the adoption of marriage law in Argentina and Iceland, recent civil unions in Brazil and, most importantly, the signing of a statement by 85 countries at the UN Human Rights Council advocating equality and human rights for everyone without discrimination on the basis of sexual orientation or gender identity. This positive trend has been read in the ILGA report as a sign of widespread awareness and unity resulting in isolation for the seventy-six ‘remaining’ countries still adopting homophobic laws and attitudes.15(LaViolette, 2009; ILGA, 2011)
The advancement of the UN human rights system is significant in terms of leverage on domestic laws and as a possible source of uniformity in human rights standards.
2.2. The Yogyakarta principles.
The international debate with regards to sexual orientation and gender identity culminated in 2007, when the International Commission of Jurists and the International Service for Human Rights drafted “The Yogyakarta Principles”, whose aim is to further an international understanding of human
15 Example of the proposed “anti-homosexuality” bill of Uganda, which has been
rights standards to be applied by states, disregarding sexual orientation and gender identity. The Principles were presented by NGO’s at the 10th Session of the Human Rights Council. During the meeting, an issue between Egypt and the Special Rapporteur16 on the promotion and protection of the right to freedom of opinion and expression ensued. Egypt’s main concern was the fact that the Principles were signed and made official by the Special Rapporteur “in his capacity as UN Representative17”. The Egyptian delegate
took no exception to the content of the Principles themselves, or to their endorsement by Special Procedures, only to the fact that the Special Rapporteur had signed them officially. Egypt admonished that “we understand that these values are acceptable in many societies, and we have no objection to this. What we have objection to is the persistent attempt to streamline those values at the UN while they are objectionable by the majority of the countries”. This reaction illustrates a widespread position in non-western countries. (LaViolette, 2009; O’Flaherty&Fischer, 2009).
The advancement of LGBTI rights is being equated to the importation of western values, and the reaction to this increased visibility of LGBTI rights in some governments has been hampering. The talks of immorality are supported by statements referring to such behaviours as non existent in
16 Statement of the Czech Republic, Interactive Dialogue on the report of the Special
Rapporteur on right to freedom of opinion and expression, Human Rights Council, 4th session, Geneva, UN Webcast 12-30 March 2007
17 Statement of Egypt on the Review, rationalization and improvement the mandate
of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Human Rights Council, 6th session (resumed), Geneva, UN Webcast 10-14 December 2007.
western traditions. According to AbuKhalil18 quoted in Massad “the advent of westernization in the Middle East brought with it various elements of western ideologies of hostility, like ... homophobia. This is not to say that there were not anti-homosexual ... elements in Arab/Islamic history, but these elements never constituted an ideology of hostility as such” (Massad, 2002, p.368) so that often, the stigmatization of homosexuality is ascribed to relics of colonialism. Calling the existence of LGBTI as a western ‘borrowed’ or ‘imported’ behavior can also be identified as strategy used in those countries to add foreign threat to traditional values, thus downgrading the west and, more importantly, disqualifying LGBTI issues from the matter of individual rights by picturing them as the embodiment of western corruption (Budd, 2008; Katyal, 2002; ILGA, 2011; Massad, 2002).
Many homophobic statements have been registered across the developing world. Katyal (2002) gives the example of the Namibian Home Affairs Minister Jerry Ekandjo in 2001, who ascribes the responsibility for the existence of homosexuality to western culture. Another notorius example, President of Zimbabwe Robert Mugabe who in 2000 “compared homosexuals to animals and called gays and lesbians behave worse than dogs and pigs” (ILGA, 2010, p.5) and at the call of violation of fundamental human rights from Amnesty International Mugabe answered that this
18 For further debate about homosexuality in relation to Arab/Islamic civilization see
Abu KHALIL, “A Note on the Study of Homosexuality in the Arab/Islamic Civilization,”
Arab Studies Journal Vol. 1, no. 2/1993 pp. 32-48; Bruce DUNNE “Homosexuality in the
Middle East: An Agenda for Historical Research,” Arab Studies Quarterly Vol. 12 no. 3-4/1990 pp. 55–82.
“foolish way” shall remain in Europe, America and elsewhere but out of Zimbabwe. And the more recent example of this is the Anti-gay bill recently rejected in Uganda. (ILGA, 2011; Katyal, 2002).
Pressure and campaigning for the equal application of human rights have been increasingly visible in the last decades. Massad (2002) aims criticism at the major, mostly US based, human rights groups such as Amnesty International or Human Rights Watch, and others, in relation to the Muslim world, by stating that the larger mission of those organization is “to liberate Arab and Muslim ‘gays and lesbians’ from the oppression under which they allegedly live by transforming them from practitioners of same-sex contact into subjects who identify as homosexual and gay.” (Massad, 2002 , p.362) Still, according to Massad (2002), as the early riots shaped women’s civil rights in the fight against the male dominant power, and its way of rule, and transferred them to the non-western world, the same has happened for LGBTI rights. With the opening of debate space for activists, groups, and dialogue in countries where the topic was previously hidden, if not forbidden, the request of a cultural-specific identity is emerging. Viktor Mukasa19 hints at this cultural transfer during a workshop in Capetown which is organized in order to create a safe space for transgender individuals to discuss their own identity as South African transgenders, independently from European and American standards and definitions. The main debate in
19 Chairperson of Sexual Minorities Ugand transgender south African activist. This
statement comes from the videos gathered at the opening of the Proudly African and
terms of international human rights thus rests between the necessity of universal recognition of those rights versus the effect of cultural relativity. The first approach focuses on the importance of the individual shaping society, whereas the latter rests on societeal regulations on the limits of individuals. Another side of the same debate points at the fact that identity-based rights application can hardly be universal because identity is culturally specific. However, from a legal point of view this relativity creates the need of a new approach to sexual minority rights which can be grasped more easily. (Massad, 2002; Morgan, 2001)
2.3. Transnational gay identity?
The enforcement of human rights is not homogenous. The argument against the application of human rights and forcing them upon countries, rests in the debate about the limit of international intervention and domestic sovereignty. Within communities where same-sex activity practice is criminalized it is not possible to uphold LGBTI rights, because to do so would be to go against the law. Because gender roles and family are traditionally considered to be a matter under domestic control that the legal status of homosexuals is different and interference from international community can be seen as meddling with domestic law.
With regards to a legal framework, the mishap is in how to ensure the enforcement of basic human rights within the uneven context without interfering with other state’s sovereignty. James Hathaway in “Refugee in
International Law” argues that there is a hierarchy of human rights, and suggests a partition of those right according to a spectrum from core to peripheral rights. Core rights are those that cannot be denied by the state, not even in extraordinary cases or emergencies, and are the ones upheld in the Universal Declaration of Human Rights (UDHR, 1948), in the International Covenant on Civil and Political Rights (ICCPR: 1966), and the International Covenant of Economic, Social and Cultural Rights (ICESCR: 1966)20. Rarely the derogation of peripheral rights can amount to the degree of persecution. However, the violation of those rights still can amount to discrimination thus preventing individuals from leading a dignifying life21. Hathaway thus attempts to include human rights into a bigger framework than identity-politics making them more universally applicable. This partition won great success among experts and decision-makers and it is extensively used in asylum procedures. However, it is not as widely applied within human rights, which are geared primarily towards identity.
A brief description of the differences in how gay identity is shaped is significant to the purpose of our discussion because it affects the interaction of the decision-makers and applicants during the RSD procedure and highlights the creation of prejudices and cultural biases in the discourse.
20 Those are freedom from arbitrary deprivation of life; protection against torture or
cruel, inhuman or degrading treatment; freedom of thought, conscience or religion; freedom from arbitrary arrest or detention, right to equal protection for all, including children and minorities; the protection of personal and family privacy and integrity; liberty of opinion, expression, assembly and association.
21 This tier includes the right to work, to just and favourable conditions of
employment; entitlement to food, clothing, housing, medical care, etc.; to own and be free from arbitrary deprivation of property.
The definition of gay identity itself does not always have the same value in the non-western world . If the right for protection is identity-based then the boundaries of this blurry concept need to be universally defined and distinguishable. Katyal in her 2002 essay “Exporting Identity” identifies three different models of constituting gay identity and its attributes within a legal framework to provide the ground for protection. On this basis Katyal argues that the protection of sexual minorities has to be globally effective, and to this end identity-based protection may not be the correct approach to universalize the issue. For “many individuals who fall outside of neatly circumscribed categories of sexual identity” (Katyal, 2002, p.100) there is the need to revise this western-centered idea and find more inclusive criteria. The first and the second model are at the basis of the common definition of sexual orientation and gender identity. The third model, or additive, simply reminds us through examples that identity is entirely context-specific. Sexual activity is not necessarily part of the determination of one’s own identity; other roles can describe and construct the individual as for example in India, same-sex activity can be totally compatible with a heterosexual marriage.
The substitutive model is the more extensively used; Katyal maintains that only in western societies is sexuality so fundamental to defining one’s own identity, and that the conflation of sexual acts with sexual identity is a western operation. More specifically she refers to US cases, the US being one of the major actors in the gay civil rights movement today. The debate
about the ground of protection of gay identity originates in the ruling of Bowers vs. Hardwick. In 1986 a police officer in Atlanta entered Hardwicks’ home to find him involved in anal sex with another man and arrested him on the account of the violation of the Georgia law that criminalized same-sex activity. To counteract this negative ruling, the argument of litigators at first was geared towards the right to privacy. However, it is impossible to elude the direct association with other outlaw and immoral acts, such as adultery and incest. To acquire constitutional protection gay and lesbian defendants explored other alternatives progressively shifting the focus from the right to privacy to identity - identity being the outward expression of same-sex sexual conduct and expecting it to be accepted overtime. Hardwick’s case comes in an already tumultuous situation with regards to LGBTI rights in America, the beginning being conventionally recognized as the 1969 Stonewall riots. LGBTI individuals rallied around the only thing they had in common which was same-sex activity and its outward expression thus furthering the need for laws for non-discrimination on the grounds of their identity.
Visibility and expression have become components of this very identity rather than constitutive elements of a gay or lesbian identity, and legally and culturally it builds upon changing the meaning of homosexuality towards a
public, collective social group identity22, rather than an activity. (Katyal, 2002; Yoshino, 2002)
The substitutive model, then, is rooted in the presumption “that the gender of one’s object choice determines a person’s sexual orientation. The model also presumes that a person’s subjective sexual orientation comprises a foundational and central aspect of a person’s sexual identity. Third and most significantly, this model also assumes the interchangeability (or ‘substitutive’ nature) of gay sexual identity, orientation and conduct.” (Katyal, 2002, p.109) The substitutive model took an influential role in legal decisions, drawing on the characteristic of minority-based claims for civil rights and equality by exploiting the presumption that one’s sexual orientation is a fixed and stable marker of personhood. Thus LGBTI rights protection moves from a definition based on sexual activity and right to privacy to one on sexual identity and right to non discrimination.
This engagement of acts and identity can create overly strict categories resulting in marginalization of groups and individuals who do not fit in the clear-cut definition23. Budd (2008) articulates the fact that western policies
22 Thus explaining the political power of practices like outing and public coming-out. 23 Queer theory is set to reject the strict categorization of identities. However, I will
not take queer theory into account in the main body of the thesis since it does not belong to the mainstream approach. Social constructivism (especially in the sexual identity context authors such as Judith Butler and David Halperlin) draws on Foucault’s work who criticizes the western focus on sexuality to define a person’s identity. Gays and lesbians are discriminated because of who they are. According to this western concept as described by Foucault, sex is at the roots of the maintenance of the existent social structure that is a condition which is desirable for the dominant class. To keep it this way and perpetuate its existance without a change is a way for the dominant power to stay where it is. Sexuality is the mean of this reproduction, therefore who holds control over sexuality has control over
are responsible for the creation of cognizable social groups that did not exist before, thus setting the boundaries for who is ‘in’ and who is ‘out’. Katyal (2002) referring to social constructivism argues that fixed identities are products of sociohistorical, cultural and political contexts. Therefore, to export them to other civilizations can cause a mis-placement. Identities are always multiple, and they intersect with other components such as social and cultural contexts. (Budd, 2008 ; Katyal, 2002). In non-western contexts the stigma attached to homosexuality often originates by transgressions of gender roles instead of the tendency to engage in same-sex sexual conduct. In this approach or transformative model, ‘transgender’ individuals are taken into account as being subject to discrimination on the account of their gender deviant aspect. Defying gender roles can be ascribed to women too. For example, a single woman defies social gender norms by refusing to perform her social function to marry and reproduce. This approach contributes to the definition of a wider category more inclusive than sexual orientation which focuses on power relations between genders in societies. (Hubbard, 2001; Katyal, 2002).
society. And whatever is diverging from this task need to be identified and regulated, kept under control and medicalized. The creation of ‘homosexuals’ as a group comes from the shift from sexual acts to identity through medicalization and pathologization of the latter. This is a pattern which Foucault places at the basis of western conception of sexual identity and power. According to Katyal and Yoshino, in other countries there is not that much power focused on sexuality but there are different layers of identity. Homosexuals as a category exist in opposition to heterosexuals, namely, in opposition to the norm, they are not-normal thus they do not deserve the same rights.
2.4. Queer Migration
A new concern and body of scholarship is emerging in the intersection of sexuality and migration, where power relations between genders and states interact. The convergence of sexuality and migration constitutes a different body of studies within the academic framework and has bloomed in the last two decades along with the debate about sexual minorities rights. The awareness of the existence of this so-called queer migration from countries where human and civil rights are not granted or applied countries with better conditions or a more tolerant environment is a recent and growing phenomenon. According to Somerville (2005), migration control remains a crucial locus for the production and performance of national sovereignty; immigration and wedding policies are two of the tools states use to keep control over the fabric of the nations, regulating sexual orientation and gender identity is a way to ensure its reproduction24. Migrants have to negotiate their identity when going to a different state. the new set of identities they have to assume in order to be assimilated “connects to the ongoing reproduction of particular forms of nationhood and national citizenship.” (Luibhéid, 2008 p.174) With this assumption, Ernst Luibhéid maintains that migrants have always been considered as heterosexuals and
24 For example, the 1952 American Immigration and Naturalization act in the US,
which was substituted only in 1990, where adulterers and homosexuals were excluded from the possibility of entering the nation for the sake maintaining good morality and not inducing a further disruption of the family unit, thus enforcing the same model also for migrants; they had to be heterosexual and possibly already bound in a family contract to access the U.S.; an idea which does not differ too much from the other western countries.
migration policies, and policies for migrants are entrenched in a heteronormative structure; their identities as migrants bring in issues of gender, class, race and language, thus creating a multiple identity at the margins of society which in fact does not includes its own LGBTI citizens. Because of this mixture, queer migrants and asylum seekers achieve a condition of double marginality within the host country by acquiring rights which are already discriminatory towards local LGBTI and the disadvantage inherent to their rank of foreigners. Additionally, the peculiar concept of sexuality in their home country entails a stigma which is not washed away ‘simply’ by migrating. That is to say while migrants tend to seek support in their new country from others belonging to the same ethnic group or same beliefs, queer migrants are as separated from their fellow nationals as they were in their home country. The conflation of these disadvantages places queer migrants in a difficult position.
In recent research, a concept of transnational queer identity has started to emerge to alleviate this situation. LGBTI organizations supporting each other across national borders and beyond nationality on the hypothesis that the conditions of ‘minorities’ as in non-dominant parts of society are interdependent; what has to be fought is the demand for compliance to structure imposed from above. However, while this debate is currently
emerging in the discourse of sexuality and power, it does not serve to the end of this research25.(Somerville 2005; Luibhéid, 2005)
In short, Somerville insists on how the model of valid sexual behavior in order to be accepted in the society is shaped also through migration policies. A much-debated example of discrimination in migration on the basis of sexuality, especially in the US, are the policies regarding reuniting; while it is not easy for couples to return together to either’s home country, for same-sex couple there is the added issue of the different sets of laws between countries that do not recognize unions. (Somerville 2005)
25 For further information see for example Judith BUTLER, 2004, “Precarious Life”,
Paco VIDARTE, 2007, “Etica Marica”, and Virginie DESPENTES, 2009, “King Kong Theory”.
